What Could Collaborative Labor Management Relations Look Like in the New Administration?

December 15, 2020 2:31 PM
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With the soon to be change in Administrations, there will undoubtedly be a change in federal labor relations to a more collaborative approach.

Republican Administrations are not fans of collaborative labor relations. One of the first acts President George W. Bush did was terminate the Clinton Administration Executive Order on Labor Management Partnerships (Executive Order 12871).

President Trump, very early in his Administration, terminated President Obama’s Executive Order on Labor Management Forums (Executive Order 13522). Trump actually went even further by issuing an Executive Order telling Agencies not to use interest-based bargaining which is one of the bedrocks of collaborative labor relations.

It is expected that, once inaugurated, President Biden will issue an Executive Order once again requiring collaborative labor relations.

To understand what this new Biden Executive order might look like, it would be helpful to review the previous collaborative labor relations Executive Orders. Undoubtedly these will form the basis of any new Biden Executive Order on collaborative labor management relations. 

Clinton and Obama Executive Orders on Federal Labor Relations

There were certain commonalities between the Clinton and Obama Executive Orders on federal labor relations. Each established a council composed of various federal officials. The Clinton Executive Order established the National Partnership Council while the Obama Executive Order established the National Council on Federal Labor-Management Relations.

The makeup of the respective councils had many of the same members on each council. Notably they each had representation from federal sector labor unions as well as high level agency representatives.

Many of the functions and responsibilities of both councils were identical or substantively similar. They both required the councils to foster the development of labor management collaboration. One through the development of labor management partnership councils and the other through the implementation of labor management forums. 

However, there were also some significant differences. The Clinton Executive Order required federal agencies to negotiate over subjects set forth in 5 U.S.C. 7106 (b) (1), the so-called permissive subjects of bargaining. This requirement was later overturned by a federal court. With that in mind, the Obama Executive Order did not require bargaining over 7106 (b) (1) instead it required the establishment of pilot projects to study the effect of bargaining over 7106 (b) (1) subjects.

There were two requirements in the Obama Executive Order that did not exist in the Clinton Executive Order. One required the establishment of metrics that measured the effectiveness of collaborative efforts. A second requirement was for agencies and unions to do an assessment of labor relations in the agency.

Both of these Executive Orders stood for the proposition that collaborative labor relations are good for the government. Requiring labor and management to be collaborative is easy to do, but how serious the participants in this mandated collaborative relationship are about being collaborative may be another matter.

It is too easy for this mandated relationship to be just a check the box exercise without true collaboration taking place. Having personally facilitated the development of Labor Management Partnerships and Labor Management Forums, it was all too clear that many of them would never achieve the goals they set within their mutually developed partnership or forum charters. 

Partnership sent the message to unions that labor and management were partners in dealing with work place issues. Some union representatives considered themselves more than just partners but in fact felt that they should be considered equals.

However, the essential rub in collaborative labor relations in the federal sector are the very strong management rights contained in the Federal Service Labor Management Relations Statute (Statute). As much as unions wanted to be true partners or equals, the Statute stood in the way of what they felt they should get out of a partnership relationship. Partnership could not expand the scope of bargaining because it could not change the Statute and change management rights. 

Labor Management Forums developed under the Obama Executive Order did not create the illusion of true partnership but instead created a place where collaboration could be fostered and actually take place. Some agencies applied a strict reading to the Obama Executive Order and had only one Labor Management Forum for the entire agency. Other agencies had multiple labor management forums at various levels of the agency.

While facilitating one of the first Partnership Councils after the issuance of the Partnership Executive Order, the fundamental issue of what collaboration meant in the Federal Sector came in full view. How could the parties collaborate over work place problems if all issues were still subject to negotiability rules? This would mean any conflict would be resolved through traditional processes which were at the time far from collaborative. (Since that time the Federal Labor Relations Authority (FLRA) has at times used collaborative approaches to resolving negotiability issues). Faced with that problem the concept of pre-decisional involvement was developed. While not specified in the Partnership Executive Order, it came to be used quite extensively in partnership relationships.

Pre-decisional Involvement

Under the concept of pre-decisional involvement (PDI), unions would be involved in work place issues before management made its final decision. This involved developing a process that required notice to the union before any final decision was made.

This would be followed by meeting with the union using interest-based bargaining (IBB) concepts to try to resolve any issues before a final decision was made. If the parties could not reach a solution then they would revert to traditional bargaining.

This process was intended to allow the union to participate in the decision-making process but left the final decision up to management. In some agencies the process was more complicated than as described. 

This collaborative process as well as collaboration itself resulted in significant pushback from many managers. They felt that PDI interfered unduly in management’s decision-making process.

Management was ultimately responsible for the outcome of management’s actions. Therefore, many believed the union had no accountability for the actions taken after the parties jointly worked together, so in a sense it was free ride for the union. If it went well, they took credit, if it went poorly it was management’s fault.

The Obama Executive Order codified PDI by providing that agencies with a union would “allow employees and their union representatives to have pre-decisional involvement in all workplace matters to the extent practicable, without regard to whether those matters are negotiable subjects of bargaining…”.

PDI also found its way into a number of collective bargaining agreements. Making it a contractual issue and not subject to termination if a new Administration came into office.

Interest Based Bargaining

The Clinton Executive Order required agencies “to provide systematic training on consensual methods of dispute resolution, such as alternative dispute resolution and interest based bargaining approaches”.

The Obama Executive Order also contained such a training requirement. These consensual dispute resolution concepts were widely used in labor management forums and partnerships as well as for collective bargaining. As noted above, interest-based bargaining is an essential approach to collaborative labor relations. 

Labor Relations Baseline Assessments

Unique to Obama’s Executive Order was the requirement for a labor relations baseline assessment. Each department or agency was required to conduct a base line assessment of labor relations. This was usually done at the level that the labor management forum existed. They were intended to be a tool used to determine where problems existed, what those problems were, and to develop approaches to improving the relationship. Having conducted a number of assessments, they were highly effective in identifying the key problems within the labor-management relationship.

Labor Relations Metrics

Also unique to the Obama Executive Order was the requirement to develop metrics to assess the value of labor management collaboration. These metrics were intended to monitor improvements in areas such as labor management satisfaction, productivity gains, cost savings and other areas as identified by the participants in the forum. 

What will the Biden Administration do?

The Biden Administration will most likely pattern its approach to labor management collaboration on some mixture of the two prior attempts at collaboration. There will undoubtedly be some kind of structure that requires meetings between labor and management. They probably will not be called partnership meetings or labor management forum meetings.

There will also be a requirement for interest based bargaining and pre-decisional involvement. The new approach will also aspire to foster labor management collaboration. Those are givens. The big question is what will it do that improves upon prior approaches. 

I have facilitated the development of a number of partnerships and forums and subsequent meetings and conducted a number of labor relations assessments. This experience has given me insights into the good and bad of these collaborative labor relations approaches and why they worked and didn’t work.

Labor relations in the last, almost 4 years, has been more contentious than at any other period in the last 30 plus years. There are a lot of bad feelings out there. Superimposing collaborative labor relations in some relationships will take a major effort. This will require the will of both management and labor to try to come up with a way to move forward. Any Biden approach will need to put a premium on relationship building and not just focus on structure or a formula for collaboration. 

The following are my suggestions:

Assessment

Any approach should start with an assessment of the current state of labor relations. These were helpful in unmasking the true state of the relationship. This should be a confidential assessment, performed by an outside neutral party, which allows both sides to speak frankly, without the fear of retaliation, about where the relationship is.

Relationship Building

The results of the assessment should lead to relationship building. The purpose would be to forgive the things that need to be forgiven, forget the things there is nothing you can do about and fix the things that need to be fixed in order to move forward. A plan should come out of this effort to hold each side accountable for doing the things necessary to get their relationship where they parties want it to go.

Develop Collaborative Processes

One goal of collaboration is to reduce conflict. Reducing conflict takes skills. Skills require training. However, to truly bring about change there needs to be a commitment from both parties. The parties can have the skills but without the commitment to use them they are wasted.

Develop a Structure

Whatever the structure is called (forums, committees, etc.) it should have a membership which signifies both sides are committed to improving the relationship. The makeup of the membership should show that each side is willing to make the commitment to have its best people involved. It should be clear what the roles and responsibilities of this body will be. Are they hands on problem solvers or just an advisory group? 

Establish Goals and Direction

The body should establish goals and not just deal with day to day labor relations issues. It should be there to solve problems and set direction.

This is a brief outline of what I think would help to establish collaborative labor relations. As they say, the third times the charm. I am hopeful that maybe the third go around on collaborative labor relations will be the charm.

© 2021 Joe Swerdzewski. All rights reserved. This article may not be reproduced without express written consent from Joe Swerdzewski.

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About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.

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